[Federal Register Volume 83, Number 156 (Monday, August 13, 2018)]
[Proposed Rules]
[Pages 39921-39923]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-17249]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR part 774

[Docket No. 180227222-8222-01]


Commerce Control List: Request for Comments Regarding Controls on 
Certain Spraying or Fogging Systems and ``Parts'' and ``Components'' 
Therefor

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Notice of inquiry.

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SUMMARY: The Bureau of Industry and Security (BIS), Department of 
Commerce, maintains the Export Administration Regulations, including 
the Commerce Control List (CCL). Certain items identified on the CCL 
are controlled for chemical/biological (CB) reasons, because they are 
identified on one of the common control lists maintained by the 
Australia Group (AG), which is a multilateral forum of countries (plus 
the European Union) that maintain export controls on specified 
chemicals, biological agents, and related equipment and technology that 
could be used in a chemical or biological weapons (CBW) program. Among 
the items subject to these CB controls are spraying or fogging systems 
described in Export Control Classification Number (ECCN) 2B352.i on the 
CCL. Through this notice, BIS is seeking public comments as part of a 
review of the effectiveness of its controls on these systems, and 
``parts'' and ``components'' therefor, to ensure that the descriptions 
of these items on the CCL are clear, do not inadvertently control items 
in normal commercial use, accurately reflect CB-related technological 
capabilities and developments, and are consistent with the principal 
objective of the AG, which is to ensure that exports of certain 
chemicals, biological agents, and dual-use chemical and biological 
manufacturing facilities and equipment, do not contribute to the spread 
of chemical and biological weapons (CBW). This notice also requests 
public comments on potential alternatives to the current controls in 
ECCN 2B352.i.

DATES: Comments must be received by BIS no later than October 12, 2018.

ADDRESSES: Comments may be submitted via the Federal eRulemaking Portal 
(http://www.regulations.gov). You can find this notice by searching on 
its regulations.gov docket number, which is BIS-2018-0013. Comments may 
also be submitted via email to [email protected] or on paper 
to Regulatory Policy Division, Bureau of Industry and Security, U.S. 
Department of Commerce, Room 2099B, 14th Street and Pennsylvania Avenue 
NW, Washington, DC 20230. Please refer to RIN 0694-XC042 in all 
comments and in the subject line of email comments. All comments 
(including any personally identifying information) will be made 
available for public inspection and copying.

FOR FURTHER INFORMATION CONTACT: For questions on the CB controls that 
apply to spraying or fogging systems described in ECCN 2B352.i, contact 
Richard P. Duncan, Ph.D., Director, Chemical and Biological Controls 
Division, Office of Nonproliferation and Treaty Compliance, Bureau of 
Industry and Security, Telephone: (202) 482-3343, Email: 
[email protected]. For questions on the submission of comments 
in response to this notice of inquiry, contact Willard Fisher, 
Regulatory Policy Division, Office of Exporter Services, Bureau of 
Industry and Security, U.S. Department of Commerce, Phone: (202) 482-
2440.

SUPPLEMENTARY INFORMATION: 

Background

    The Bureau of Industry and Security (BIS), Department of Commerce, 
maintains the Export Administration Regulations (EAR) (15 CFR parts 
730-774), including the Commerce Control List (CCL) (Supplement No. 1 
to part 774 of the EAR). Through this notice, BIS is seeking public 
comments as part of a review of the effectiveness of its controls on 
spraying or fogging systems, and ``parts'' and ``components'' therefor, 
that are described in paragraph (i) of Export Control Classification 
Number (ECCN) 2B352 on the CCL. The items controlled by ECCN 2B352.i 
are subject to chemical/biological (CB) controls on the CCL, because 
they are identified on one of the common control lists maintained by 
the Australia Group (AG), specifically, the AG ``Control List of Dual-
Use Biological Equipment and Related Technology and Software.'' The AG 
is a multilateral forum consisting of 42 participating countries and 
the European Union that maintain export controls on specified 
chemicals, biological agents, and related equipment and technology that 
could be used in a chemical or biological weapons program.

Current EAR Controls on Spraying or Fogging Systems

    Currently, ECCN 2B352.i controls complete spraying or fogging 
systems, spray booms, and arrays of aerosol generating units that are: 
(1) ``specially designed'' or modified for fitting to aircraft, 
``lighter than air vehicles,'' or ``unmanned aerial vehicles'' 
(``UAVs''); and (2) capable of delivering, from a liquid suspension, an 
initial droplet volume median diameter (`VMD') of less than 50 microns 
at a flow rate of greater than 2 liters per minute. This ECCN also 
controls aerosol generating units that are ``specially designed'' for 
fitting to the aforementioned equipment.
    The Technical Notes immediately following ECCN 2B352.i clarify the 
scope of these controls and provide guidance on how to evaluate certain 
characteristics (e.g., droplet size) to determine whether specific 
equipment is controlled under this ECCN. Technical Note 1 states that 
aerosol generating units, for purposes of the controls in ECCN 2B352.i, 
are devices ``specially designed'' or modified for fitting to 
``aircraft'' and include nozzles, rotary drum atomizers and similar 
devices. Technical Note 2 clarifies the scope of ECCN 2B352 by 
indicating that this ECCN does not control spraying or fogging systems 
and ``parts'' and ``components'' therefor, as described in 2B352.i, 
that are demonstrated not to be

[[Page 39922]]

capable of delivering biological agents in the form of infectious 
aerosols. Technical Note 3 provides guidance on how to measure `VMD' 
for droplets produced by spray equipment or nozzles ``specially 
designed'' for use on ``aircraft'' or ``UAVs,'' indicating that, 
pending the adoption of internationally accepted standards, `VMD' 
should be measured using either of the following methods: (1) Doppler 
``laser'' method; or (2) forward ``laser'' diffraction method.
    The control text in ECCN 2B352.i, as described above, is consistent 
with the corresponding controls described in the AG ``Control List of 
Dual-Use Biological Equipment and Related Technology and Software,'' 
which were established to address a very specific threat, i.e., the 
dissemination of biological agents from the air.

Proposed Alternatives to the Current Controls in ECCN 2B352.i

    As part of its review of the ECCN 2B352.i controls on spraying or 
fogging systems, and ``parts'' and ``components'' therefor, BIS is 
considering expanding the scope of these controls to include: (1) 
Systems for the dissemination of chemicals controlled by ECCN 1C350 or 
1C355 (currently, CB controls apply only to systems for the 
dissemination of biological agents controlled by ECCN 1C351); and (2) 
ground-based systems (currently, CB controls apply only to airborne 
systems). These changes are being considered because potential 
chemical/biological warfare (CBW) threats are likely to include the 
dissemination of chemical agents, as well as the dissemination of 
biological agents, and may well involve ground-based methods of 
dissemination, as well as airborne means of dissemination.
    Consequently, BIS is considering one or more of the following 
options with respect to the EAR controls on spraying or fogging 
systems, and ``parts'' and ``components'' therefor.
    (1) Removing the criterion in ECCN 2B352.i that currently limits CB 
controls to those systems that are ``specially designed'' or modified 
for fitting to ``aircraft,'' ``lighter than air vehicles,'' or 
``UAVs.'' The rationale for this change is that the ability of such 
systems to produce an aerosol is not determined by whether the systems 
are ground-based or airborne.
    (2) Removing the criterion in ECCN 2B352.i based on initial droplet 
size (i.e., an initial droplet `VMD' of less than 50 microns). The 
rationale for this change is that initial droplet size is not 
necessarily a feature that is measured (or otherwise addressed) by all 
manufacturers of these systems. In addition, the initial droplet size 
currently indicated in ECCN 2B352.i is based solely on the airborne 
dissemination of biological agents (i.e., those controlled by ECCN 
1C351) and would not necessarily apply to systems for the airborne 
dissemination of chemicals (i.e., those controlled by ECCN 1C350 or 
1C355) or the ground-based dissemination of such chemicals or 
biological agents.
    (3) Lowering the flow rate at which spraying or fogging systems are 
controlled under ECCN 2B352.i. Currently, ECCN 2B352.i specifies a flow 
rate of ``greater than 2 liters per minute.'' However, BIS acknowledges 
that this change would involve determining a lower flow rate that would 
not catch typical commercial systems (e.g., systems designed for 
agricultural use), except when deemed necessary to ensure the continued 
effectiveness of CB controls on spraying or fogging systems.
    (4) Developing a control that would apply to spraying or fogging 
systems ``specially designed'' for the dissemination or dispersion of 
chemicals controlled by ECCN 1C350 or 1C355 or biological agents 
controlled by ECCN 1C351 in a manner likely to cause significant harm 
to humans or livestock or serious damage to crops.
    With respect to option #4 described above, note that paragraph 
(a)(1) of the definition of ``specially designed'' in Section 772.1 of 
the EAR states that an item is ``specially designed'' if, as a result 
of ``development,'' it ``has properties peculiarly responsible for 
achieving or exceeding the performance levels, characteristics, or 
functions in the relevant ECCN or U.S. Munitions List (USML) 
paragraph.'' Therefore, if the term ``specially designed'' were used in 
the control text for spraying or fogging systems in ECCN 2B352.i, the 
only systems that would be captured by these controls would be those 
that are peculiarly responsible for achieving the dissemination or 
dispersion of chemicals controlled by ECCN 1C350 or 1C355 or biological 
agents controlled by ECCN 1C351 in a manner likely to cause significant 
harm to humans or livestock or serious damage to crops (i.e., 
properties that would distinguish these systems from typical commercial 
systems, such as those designed for agricultural applications). 
Consequently, under option #4, the controls in ECCN 2B352.i would not 
apply to spraying or fogging systems designed for commercial use that 
have performance levels, characteristics, or functions that are capable 
of, but not peculiarly responsible for, achieving the dissemination or 
dispersion of chemicals controlled by ECCN 1C350 or 1C355 or biological 
agents controlled by ECCN 1C351 in the manner described above.

Request for Comments

    BIS is publishing this notice of inquiry to obtain public comments 
as part of a review of the effectiveness of the EAR controls on 
spraying or fogging systems, and ``parts'' and ``components'' therefor, 
as currently described in ECCN 2B352.i. Specifically, BIS is seeking 
comments that address whether the descriptions of these items on the 
CCL: (1) Are clear; (2) do not inadvertently control items in normal 
commercial use; (3) accurately reflect CB-related technological 
capabilities and developments; and (4) are consistent with the 
principal objective of the AG, which is to ensure that exports of 
certain chemicals, biological agents, and dual-use chemical and 
biological manufacturing facilities and equipment do not contribute to 
the spread of chemical and biological weapons (CBW).
    The public comments submitted in response to this notice of inquiry 
should address specific aspects of the current controls in ECCN 2B352.i 
in relation to the four criteria described above. For example, if the 
current control text is not sufficiently clear or does not accurately 
reflect CB-related technological capabilities and developments, please 
identify the specific aspects in which the current controls fall short 
with respect to these criteria. In addition, please indicate: (1) The 
extent to which the existing controls in ECCN 2B352.i would apply to 
any spraying or fogging systems that are currently being manufactured 
and/or sold; or (2) if the existing controls do not apply to any 
current systems, what specific aspects (e.g., flow rate or `VMD') would 
differentiate such systems from the systems described in ECCN 2B352.i. 
Also, if applicable, describe the manner in which your company 
evaluates spraying or fogging equipment, and ``parts'' and 
``components'' therefor, consistent with Technical Note 2 to ECCN 2B352 
as described above, which states that this ECCN does not control items 
specified in 2B352.i if they are ``demonstrated not to be capable of 
delivering biological agents in the form of infectious aerosols.''
    In addition, BIS encourages the public to submit comments on the 
aforementioned options to modify the current controls in ECCN 2B352.i. 
Comments on these options should focus on the extent to which they 
would satisfy the four criteria described above and also address the 
potential impact of

[[Page 39923]]

these alternative controls on specific types of spraying or fogging 
systems (including ``parts,'' ``components,'' ``accessories,'' and 
``attachments'' therefor) that are currently being manufactured and/or 
sold or that are likely to be manufactured and/or sold in the 
foreseeable future. Comments on option #4 (where the ECCN 2B352.i 
control text would include the term ``specially designed'') should not 
only address this option with reference to the four criteria described 
above, but also identify any performance levels, characteristics, or 
functions that clearly distinguish commercial spraying or fogging 
systems from those systems having properties that are peculiarly 
responsible for achieving the dissemination or dispersion of chemicals 
controlled by ECCN 1C350 or 1C355 or biological agents controlled by 
ECCN 1C351 in a manner likely to cause significant harm to humans or 
livestock or serious damage to crops.

    Dated: August 6, 2018.
Richard E. Ashooh,
Assistant Secretary for Export Administration.
[FR Doc. 2018-17249 Filed 8-10-18; 8:45 am]
 BILLING CODE 3510-33-P